Haridas v. K. Balakrishnan, E.V. Subair and The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 27[TH] DAY OF SEPTEMBER 2021 / 5TH ASWINA, 1943** ## **MACA NO. 1393 OF 2010** ## **AGAINST THE AWARD IN OPMV 1330/2006 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL, OTTAPPALAM, PALAKKAD** ## **APPELLANT/PETITIONER:** HARIDAS, AGED 46 YEARS,REPRESENTED BY HIS WIFE MALLIKA D/O.KUMARAN, KUNDUPARAMBIL HOUSE,, ERAVAKKAD P.O., PALAKKAD. BY ADV SRI.SHEJI P.ABRAHAM ## **RESPONDENTS/RESPONDENTS:** 1 K.BALAKRISHNAN, S/O KRISHNAN KUTTITHARA HOUSE, EDAPPAL P.O., MALAPPURAM. 2 E.V.SUBAIR S/O.ABDU EKKURATHAVALAPPIL HOUSE, SUKUPURAM, EDAPPAL,MALAPPURAM. 3 THE ORIENTAL INSURANCE CO. LTD C.K.BUILDING, THAZHAPPALAM, TIRUR,, MALAPPURAM-676101., POLICY NO.1879/2007 VALID FROM 7.6.2006 TO 6.6.07 BY ADV LATHA SUSAN CHERIAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1393 OF 2010 2** Dated this the 27[th] day of September,2021 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.1330/2006 on the file of the Motor Accidents Claims Tribunal, Ottappalam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 26.08.2006. It was his case that, he had hired a lorry bearing registration No. KL 8 G 4348 (lorry) to bring stones for the construction of his compound wall, and he travelled in the lorry from Edappal to Pattambi. However, when the lorry reached a place named Kuttippala Village, it hit against a bus bearing registration No. KL 9- Q 1069 (bus) which was coming from the opposite direction. The lorry was driven by the 1[st] **MACA NO. 1393 OF 2010 3** respondent in a rash and negligent manner. The appellant sustained serious injuries. He was treated at the West Fort Hi- Tech Hospital, Thrissur continuously for a period of one month. The lorry was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The appellant was a driver by profession and earning a monthly income of Rs.5000/-. The appellant claimed a compensation of Rs.12,70,750/- from the respondents, which was limited to Rs.7,00,000/-. 3. In the very same accident, other persons were also injured. They had also filed O.P(M.V) Nos.1065/2006, 76/2007, 83/2007, 84/2007 and 85/2007 before the same Tribunal. 4. The respondents 1 and 2 did not contest the proceedings. 5. The third respondent had filed written statements in all the claim petitions, inter alia, contending that the accident occurred due to the negligence of the ## **MACA NO. 1393 OF 2010 4** driver of the bus. It was stated that the claim petitions were bad for non-joinder of necessary parties, since the driver, owner and insurer of the bus were not impleaded. The 3[rd] respondent also disputed the age, occupation and income of all the injured. 6. The Tribunal consolidated and jointly tried all the claim petitions. 7. The petitioners in all the cases examined PWs1 to 4 and marked Exhibits A1 to A30 in evidence. The respondents did not let in any evidence. 8. The Tribunal by its common award allowed the captioned claim petition, by permitting the appellant to realise from the 3[rd] respondent an amount of Rs.3,53,300/- with interest at the rate of 7% per annum from the date of filing the petition till the date of realisation and a cost of Rs.4000/-. 9. Dissatisfied with the quantum of compensation , the petitioner is in appeal. ## **MACA NO. 1393 OF 2010 5** 10. Heard; Sri.Sheji P Abraham the learned counsel appearing for the appellant/petitioner and Smt.Latha Susan Cherian the learned counsel appearing for the third respondent/insurer. 11. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability** 12. Exhibit A27 charge sheet proves that the accident occurred due to the negligence of the 1st respondent. Admittedly, the 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the lorry. The 3[rd] respondent has admitted that the lorry had a valid insurance coverage and did not contend that the 2[nd] respondent had violated any of the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 2[nd] respondent. **MACA NO. 1393 OF 2010 6** ## **Income of the appellant** 13. The appellant had contended that he was a driver by profession and earning a monthly income of Rs.5000/-. The appellant had not produced any document to substantiate that he was a driver by profession. In the said circumstances, the Tribunal fixed the notional income of the appellant at Rs.2500/- per month. 14. Before this Court, the appellant has now produced Exhibit A31 driving license to substantiate that he had a Heavy Passenger Motor Vehicle and Heavy Goods Motor Vehicle with effect from 02.07.1996. Therefore, it proved that as on the date of accident i.e., on 26.08.2006, the appellant had a valid driving license to drive heavy passenger and goods motor vehicles. 15. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year **MACA NO. 1393 OF 2010 7** 2004 at Rs. 4500/- per month. 16. Taking into account the above yardstick and keeping in mind the fact that the accident occurred in the year 2006 and also that the appellant has proved through Exhibit A31 that he is a driver by profession, I have no hesitation to fix his notional monthly income at Rs.5000/as claimed in the claim petition. ## **Loss of earnings** 17. The Tribunal, taking into account the injuries sustained by the appellant, particularly, the comminuted fracture frontal and ACF, fracture shaft of femur with butterfly fragment(L), fracture neck of femur(L), open fracture both bones left leg, arrived at a conclusion that the appellant was indisposed for a period of six months. I confirm the above finding of the Tribunal in this regard. 18. In view of the re-fixation of the notional income of the appellant at Rs.5000/-, I enhance the compensation for loss of earnings to Rs.30,000/-, instead of Rs.15,000/- ## **MACA NO. 1393 OF 2010 8** awarded by the Tribunal. ## **Loss of disability** 19. The appellant had produced Exhibit A22 disability certificate to prove that he has a disability of 34% to the limb and 14% to the whole body. Similarly, he produced Exhibit A23 disability certificate issued by a Neuro Surgeon to substantiate that he has emotional instability and temper tantrums due to his depressed forehead and he had post-traumatic epilepsy. Even though the appellant had examined PW3, who issued Exhibit A22 certificate, the Tribunal for the reason that the appellant had not examined the doctor who issued Exhibit A23 certificate, fixed the disability of the appellant at 15%. 20. Now, before this Court the appellant has produced Exhibit A32 certificate issued by the Standing Disability Assessment Board on 26.12.2013, wherein the Board has certified that the appellant has psychiatry/ophthalmic handicap and post traumatic impairment and, therefore, ## **MACA NO. 1393 OF 2010 9** the appellant has a partial/permanent disability of 50%. 21. We now have three certificates namely, A22, A23 and A32 to prove that the appellant has a permanent disability. 22. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC], the Honourable Supreme Court has held in a case of injury, what needs to be looked into is the functional disability of the injured. 23. Going by the assessment of the injuries in Exhibits A22, A23 and A32, it is seen that the appellant has 34% disability to his limb, 14% disability to his whole body, 5% disability due to bone defect in a skull, 5% due to risk of epilepsy and 50% disability due to post traumatic impairment, respectively. 24. It is the specific case of the appellant that he is a driver by profession. Taking into account the nature of injuries that the appellant has sustained as per Exhibit A7 wound certificate and Exhibit A8 discharge summary, it **MACA NO. 1393 OF 2010 10** stands proved that the appellant had suffered a compound comminuted fracture frontal and ACF, fracture shaft of femur with butterfly fragment(L), fracture neck of femur(L), open fracture both bones left leg. Exhibit A22 certificate issued by PW3 establishes that the appellant has a disability for the limb at 34% and the whole body at 14%. Keeping in mind that the appellant was a driver by profession and that his left leg has been severely damaged and he finds it extremely difficult to carry on with his avocation in the manner prior to the accident, I am of the opinion that the appellant’s functional disability is to be assessed and fixed at 34% as certified in Exhibit A22. 25.On a consideration of the above mentioned factors, namely, the appellant was aged 42 years at the time of accident, his monthly income of Rs.5000/-, disability is 34% and the relevant multiplier at 14, I am of the definite opinion that the appellant is entitled for compensation for loss due to disability at Rs.2,85,600/- instead of **MACA NO. 1393 OF 2010 11** Rs.67,500/- awarded by the Tribunal. ## **Loss of amenities** 26. The appellant had claimed an amount of Rs.1,50,000/- as compensation for loss of amenities. However, the Tribunal awarded an amount Rs.10,000/under the said head which according to me is on the lower side. 27. Considering the serious injuries sustained by the appellant as reflected in Exhibit A7 wound certificate, Exhibit A8 discharge summary and Exhibit A22, A23 and A32 disability certificates, I hold that the appellant is entitled for a further amount of Rs.40,000/- under the said head, mindful of the fact that his functional disability is 34%. ## **Future prospects** 28. The learned counsel appearing for the appellant vehemently argued that the appellant is also entitled for future prospects. He placed reliance on the decision of **MACA NO. 1393 OF 2010 12** the Honourable Supreme Court in **Antony v. Managing Director, KSRTC [2020 (4) KLT 21]** , and the decision of this Court in **United India Insurance Company Ltd.** **v. Dhanesh** [2020(3) KLT 1197] to canvas the said position. 29. This Court as well as the Honourable Supreme Court in the above-cited decisions have categorically held that the injured claimant is entitled to future prospects, only if the injuries are serious in nature and injured will not be in a possession to carry out his avocation. 30. Undisputedly, in the instant case, the appellant has a functional disability of 34% as per the findings rendered above. He is not precluded from carrying out any other avocation. 31. In **Pappu Deo Yadav v. Naresh Kumar and others** [AIR (2020) SC 4424], the Honourable Supreme Court has held that the nature of injuries should be severe which impairs the injured from carrying on with any other ## **MACA NO. 1393 OF 2010 13** avocation, to make him entitled for future prospects. 32. As the appellant has only 34% functional disability, I am of the firm opinion that the appellant is not entitled to future prospects. 33. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 34. On an over all re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculate<br>d by this<br>Court| |---|---|---|---| |1|Loss of earnings|15000|30000| |2|Medical expenses|224500|224500| ## **MACA NO. 1393 OF 2010 14** ||||| |---|---|---|---| |3|By-stander<br>expenses|5800|5800| |4|Transport<br>expenses|5000|5000| |5|Extra nourishment|5000|5000| |6|Damage<br>to<br>clothing|500|500| |7|Pain and sufferings|20,000|20000| |8|Loss of amenities|10000|40000| |9|Loss<br>due<br>to<br>disability|67500|285600| ||**Total**|**353300**|**616400**| In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.2,63,100/-/- with interest on the enhanced compensation at the rate of 7 % per annum from the date of petition till the date of deposit and a cost of Rs.4000/-. The third respondent is ordered to deposit the enhanced compensation with interest and cost **MACA NO. 1393 OF 2010 15** before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant after deducting his liability if any towards the court fee and in accordance with law. Registry shall return the original documents produced by the appellant before this Court, on his application, in accordance with law. SD/- ## **C.S.DIAS,JUDGE** rmm/29/9/2021 **MACA NO. 1393 OF 2010 16** ## **APPENDIX** APPELLANT’S EXHIBITS ANNEXURE A1 ORIGINAL DRIVING LICENSE ANNEXURE A2 TRUE COPY OF THE DISABILITY CERTIFICATE RESPONDENTS’ EXHIBITS NIL